THE JOURNAL OF
APPELLATE PRACTICE
AND PROCESS
Volume 7 | Issue 1
Article 5
2005
Recusal on Appeal: An Appellate Advocate's
Perspective
Howard J. Bashman
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Howard J. Bashman, Recusal on Appeal: An Appellate Advocate's Perspective, 7 J. App. Prac. & Process 59 (2005).
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RECUSAL ON APPEAL: AN APPELLATE ADVOCATE'S
PERSPECTIVE
Howard J. Bashman*
I. INTRODUCTION
My clients all share an overriding concern-to win on
appeal. Only rarely in my fifteen years of appellate practice,
however, has a client expressed concern over whether grounds
exist to disqualify a judge assigned to hear and decide the case
on appeal. I have concluded from this evidence that clients
typically believe that appellate judges will hear cases in a fair
and impartial manner, and I suppose that clients might even
welcome the participation of appellate judges perceived as, for
lack of a better term, biased in favor of their position on appeal.
But, for understandable reasons, a client would be quite
concerned about having an appeal heard and decided by a judge
perceived as biased against the client's position.
Assuming that my clients are in these respects similar to
those of other appellate lawyers, I will address in this article the
considerations likely to affect a decision about whether to seek
the recusal of a judge assigned to hear an appeal. First, however,
I survey the field in order to place those considerations in the
appropriate context.
* Howard J. Bashman is an appellate lawyer who operates an appellate litigation boutique
based in Fort Washington, Pennsylvania. He writes a monthly column on appellate issues
for The Legal Intelligencer, an American Lawyer Media publication, and some of the
subjects addressed in this article have been discussed in his monthly column. His
commentary on appellate issues has also appeared in The Los Angeles Times and in the
online magazine Slate. Bashman is widely known for his appellate web log, "How
Appealing," hosted by Legal Affairs magazine, which can be accessed online at
http://appellateblog.com. He thanks The Journal of Appellate Practice and Process for
asking him to contribute this essay, thereby providing him with one more enjoyable but
time-consuming impediment to performing billable work for his appellate clients.
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 7, No. 1 (Spring 2005)
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
II. REPRESENTATIVE COURT RULES AND PROCEDURES
To discuss recusal from the perspective of an appellate
practitioner, it is first necessary to understand the differing
procedures that appellate courts employ in deciding which
judges will hear and decide which appeals. And an appellate
court's procedures concerning when the identities of the judges
who will hear and decide an appeal are disclosed to the parties
can also be of importance in a particular case. Only after
understanding how appellate judges go about determining
whether recusal is appropriate and determining the point during
the appellate process when the identities of the judges assigned
to hear and decide an appeal are disclosed to the parties can one
usefully consider the recusal-related options and strategies
available to an appellate practitioner.
The appellate court whose procedures I know best is the
United States Court of Appeals for the Third Circuit.' That is the
appellate court in which I represent clients most frequently, and
before entering into private practice, I served a two-year
clerkship for a Third Circuit Judge. I know from this experience
that Third Circuit judges are expected to furnish the Clerk's
Office with a list of parties, attorneys, and law firms on whose
cases they will be recused from participating. Thus, if the
judge's spouse or child is an attorney, the judge will likely
include the law firm at which the spouse or child works as one
in whose cases the judge will refrain from participating.
Similarly, if the judge owns stock in a given company, the judge
will include it on his recusal list.
The Third Circuit, like all the other federal Courts of
Appeals, decides the vast majority of appeals using three-judge
panels. The Third Circuit is authorized to have fourteen active
judges,2 and also calls on its senior circuit judges, along with
visiting circuit and district judges from other courts, for
assistance in hearing and deciding appeals. Drawing on this
group of available judges, the Clerk's Office, in coordination
1. An online version of the Third Circuit's internal operating procedures, which
contain information about the recusal process, is available at http://www.ca3.uscourts.gov/
Rules/IOP-Final.pdf (accessed May 10, 2005; copy on file with Journal of Appellate
Practice and Process).
2. See 28 U.S.C. § 44(a) (available at http://uscode.house.gov).
RECUSAL ON APPEAL: AN APPELLATE ADVOCATE'S PERSPECTIVE
61
with the court's chief judge, compiles an oral-argument calendar
that lists which panels will hear cases during which weeks of the
year, along with the cities where the panels are scheduled to
convene. The lists are randomly generated, although they are
subject to change both to ensure that all active judges have the
opportunity to sit on panels with one another and to
accommodate the judges' anticipated unavailability for oral
argument due to other work-related or personal obligations.
Once the oral-argument calendar is established, the Clerk's
Office begins tentatively assigning appeals to the next available
panel in the order in which cases become fully briefed and ready
for disposition. Before a case is tentatively assigned to a panel,
however, the Clerk's Office will compare the parties, their
lawyers, and their law firms against the judges' recusal lists. If
any judge on the initial panel is recused, the case will be
assigned instead to a different three-judge panel.
After the Clerk's Office conducts this initial recusal
screening, it submits to each judge on the panel a list of the
parties, counsel, and law firms whose cases have been
tentatively assigned to the panel. This procedure enables the
judges on the panel themselves to determine at an early stage of
the proceeding whether they should recuse themselves from
hearing and deciding any of the cases tentatively assigned to the
panel. If any judge sees the need to recuse from a particular
case, that case will be assigned to another three-judge panel and
will be replaced by another case, which will then be reviewed
for recusal purposes.
Once this two-step screening process concludes, the judges
on a given three-judge panel will receive the briefs and
appendices in the cases assigned to it. Before oral argument
occurs, the judges will review those briefs in detail, and that
detailed review may reveal a need to recuse that was not
apparent from earlier information. If a judge recuses after a case
has been assigned to a panel but before oral argument occurs, a
replacement judge will typically be assigned to hear that case.
This replacement judge is usually not randomly selected; rather,
if a judge has his resident chambers where the oral argument is
scheduled to occur and is otherwise available, he may be asked
to participate in the case either by the recused judge or by the
chief judge.
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
In the Third Circuit, the names of the judges assigned to
decide a case are revealed to counsel approximately two weeks
in advance of the date scheduled for oral argument or, if a case
is to be submitted on briefs without oral argument, about two
weeks before the submission date. Thus, the parties and their
attorneys have a relatively brief time in which to decide whether
to seek the recusal of any of the judges assigned to hear and
decide the case.
Some other state and federal intermediate appellate courts
provide even less advance notice. In certain intermediate
appellate courts, the lawyers will not learn the identities of the
judges assigned to hear oral argument until they arrive in court
on the day of oral argument. And some federal appellate courts
employ an oral-argument screening process whereby, if a case is
decided on the briefs alone without oral argument, the first
notice that the parties and their attorneys receive of the judges
assigned to decide the case will be when the appellate court
issues a copy of its written ruling in the appeal.
Of course, in appeals that will be decided by a three-judge
panel of an intermediate appellate court, parties and their
lawyers will know which active and senior judges serve on that
court, and thus have a chance of being selected to hear and
decide the appeal. And some appellate courts, most commonly
appellate courts of last resort, hear and decide most every appeal
using all judges in active service. Thus, for example, when a
case arrives on review to the Supreme Court of the United States
or the Supreme Court of Pennsylvania, the lawyers and the
parties know the identities of the Justices who will be deciding
both whether to review the case on the merits and, if review is
granted, what the outcome will be.
III. THE
APPLICABLE FEDERAL STATUTE
In the federal court system, a federal statute governs
judicial recusal.3 The statute describes two categories for
disqualification, the first being that a judge "shall disqualify
himself in any proceeding in which his impartiality might
3. See 28 U.S.C. § 455 (available at http://uscode.house.gov).
RECUSAL ON APPEAL: AN APPELLATE ADVOCATE'S PERSPECTIVE
63
reasonably be questioned." 4 The parties to a case are allowed,
following full disclosure of the basis for disqualification, to
waive a judge's recusal if5 the ground for disqualification arises
only under this provision.
The second situation in which recusal is necessary arises if
a judge (1) has actual bias or prejudice concerning a party; (2)
has a direct financial interest, however small, in a party; (3) has
served as lawyer in the matter in controversy while in private or
governmental practice; or (4) has a spouse or child who is a
party, lawyer or witness in the proceeding. 6 If any of these
circumstances are present, the 7duty of a judge to recuse is not
subject to waiver by the parties.
For ease of discussion, it is useful to focus here on the four
major grounds for judicial disqualification contained in the
statute: (1) a financial interest in the result of the litigation; (2) a
familial interest in the litigation, for example if a close family
member of the judge is a party or serving as attorney for a party;
(3) actual bias involving the facts, issues, parties, lawyers or law
firms involved; and (4) circumstances in which the judge's
impartiality might reasonably be questioned.
The very first strategic question related to these issues
concerns the most advantageous time for filing a recusal request.
Assume, for example, that a product liability judgment awarding
damages to a smoker has been returned against a tobacco
company, and the tobacco company has appealed to the as-ofyet hypothetical United States Court of Appeals for the
Fourteenth Circuit. Assume further that the spouse of one judge
on that court is a partner in the law firm defending the tobacco
company, while another appellate judge's financial disclosure
statement indicates that she owns stock in the tobacco company.
Finally, assume that a third appellate judge on the court formerly
ran for an elective state court judicial position, and in the
campaign the candidate criticized those who would seek to
impose liability against fast-food restaurants and companies that
manufactured cigarettes.
4.
5.
6.
7.
28 U.S.C. § 455(a) (available at http://uscode.house.gov).
See 28 U.S.C. § 455(e) (available at http://uscode.house.gov).
See 28 U.S.C. § 455(b) (available at http://uscode.house.gov).
See 28 U.S.C. § 455(e) (available at http://uscode.house.gov).
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
The lawyer for the plaintiff seeking to uphold a finding of
liability against the tobacco company could, once an appeal is
docketed, file a formal pleading that sought the recusal of those
three judges. But such an immediate, post-appellate-docketing
request could prove entirely superfluous. First, none of the three
judges whose recusal is sought may be on the panel initially
assigned to decide the appeal. Second, the judge who owns stock
in the tobacco company and the judge whose spouse is a partner
in the tobacco company's law firm should recognize the need to
recuse if the appeal is assigned to them, in the unlikely event
that automatic screening in the Clerk's Office fails to trigger
recusal. Finally, the appellate judge who spoke critically of
tobacco-liability claimants during his run for judicial office in
the state court system may or may not perceive himself as
actually biased or as someone whose impartiality might be
reasonably questioned.
As a strategic matter, it would appear unnecessary to move
as soon as the appeal is docketed for recusal of the judge who
owns stock or the judge who is related to counsel, because
recusal of those two judges should occur as a matter of course.
Nevertheless, there are instances when recusals that should have
occurred automatically-for example, recusals in the federal
system based on direct stock ownership in a litigantinexplicably have failed to occur. In 1999, the organization
Community Rights Counsel issued a report concluding that eight
federal appellate judges had taken part during 1997 in eighteen
cases involving litigants in which the judges, their spouses, or
trusts that they managed held stock. That report led to a front
page article in The Washington Post. 8 Earlier, The Kansas City
Star had published a series of articles entitled On Their Honor:
Judges and Their Assets, which revealed that federal judges in
that region of the Midwest repeatedly have presided over
lawsuits involving companies in which they hold stock. 9
8. See Joe Stephens, Judges Ruled on Firms in Their Portfolios, Wash. Post A01
(Sept. 13, 1999) (available at http://www.washingtonpost.com/wp-srv/politics/feed/a53063
-1999sep13.htm) (accessed Mar. 23, 2005; copy on file with Journal of Appellate Practice
and Process).
9. Joe Stephens, Stocks and Ethics Collide in Courtroom, Kansas City Star (Apr. 4,
1998); Joe Stephens, JudicialEthics Law Contains Few Loopholes, Kan. City Star (Apr. 4,
1998); Most Area FederalJudges Have Owned Stock in Litigants, Kan. City Star (Apr. 4,
1998); Position Held at Hospital Poses Different Problem, Kan. City Star (Apr. 4, 1998);
RECUSAL ON APPEAL: AN APPELLATE ADVOCATE'S PERSPECTIVE
65
The organization Judicial Watch is currently in the process
of posting online images of the Financial Disclosure Reports
that federal judges are required to file each year.' 0 Consulting
these reports on line often will allow litigants and their attorneys
to ascertain whether an appellate judge assigned to a case has a
disqualifying financial interest in the matter. And because the
expected automatic recusal does not always occur, it is of course
prudent for the appellate advocate to review them in any case in
which the financial information they contain might be relevant.
The federal law governing judicial recusal requires a
federal judge to recuse from hearing a case involving a publicly
owned company if the judge directly owns even one share of
stock in the company.'1 Presumably a judge who owns a single
share of stock in Altria Group, the company that owns tobacco
manufacturer Philip Morris USA, will not be influenced by that
minor ownership interest in deciding how to rule in the
hypothetical appeal I have outlined here. Yet the recusal
requirement is inflexible, requiring a judge to recuse whether he
directly owns one share or all shares of stock in a litigant.
But what if a judge who owned one share of Altria Group
failed to recuse in an appeal involving Philip Morris USA?
When should the plaintiff seeking to uphold a decision imposing
tobacco-related product liability move to recuse the judge?
Prudence dictates moving to recuse the judge before a decision
issues. Otherwise, if the plaintiffs lawyer knew of the ground
for recusal before a decision issued but was lying in wait to see
whether that judge might rule for the plaintiff (or could be
perceived as using that strategy), the plaintiff could be deemed
to have waived the right to object to the judge's participation in
Joe Stephens, KC Not Alone in Seeing Problem Cases, Kan. City Star (Apr. 4, 1998); Joe
Stephens, Judges Escape Public Scrutiny on Ethics, Kan. City Star (Apr. 5, 1998); Joe
Stephens, "Immunity from Mistakes" Disgusts Former Litigants, Kan. City Star (Apr. 5,
1998). All articles in this series are available at http://www.kcstar.com/judges/index
.html (accessed Mar. 24, 2005; copies on file with Journal of Appellate Practice and
Process). And for more on this topic, see the editorial entitled Judges' Financial
Disclosures, which ran on page A26 of the Washington Post of September 13, 1999.
10. The Financial Disclosure Reports are available at http://www.judicialwatch.org/
judges.shtml. The Ethics in Government Act of 1978 requires federal judges to file these
reports. See 5 U.S.C. app. § 101-111 (available at http://uscode.house.gov).
II. See 28 U.S.C. § 455(b) (available at http://uscode.house.gov).
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
the case, even though the ground for recusal falls into the
category of "unwaivable" conflicts.12
It is more difficult to determine the optimal time to submit
a recusal request to a court whose oral-argument screening
process will, if argument is not ordered, result in the issuance of
a decision with no advance disclosure of the panel's
composition. On the one hand, moving to recuse all judges who
ought to refrain from participating in the case might be
superfluous, because some or all of those judges may not be on
the panel assigned to decide the case, either due to chance or to
their own independent, behind-the-scenes recusals. On the other
hand, waiting until a ruling issues very likely will create the
sore-loser perception-that recusal is being sought only because
the outcome was unfavorable.' 3 And even if the ruling is
favorable, the opposing party would, it seems, be able to raise
the issue of recusal in an attempt to overturn its loss. If two
judges on a three-judge federal appellate panel own stock in the
appellant corporation, and if the court's ruling is adverse to that
corporation, its lawyers could presumably argue that those
judges should have recused even though their bias, if any, might
at first have appeared likely to operate in favor of the
corporation.
IV. A RISK TO CONSIDER-OFFENDING THE COURT
It is a curious aspect of the judicial system in the United
States that the judge whose recusal is sought decides in the first
instance whether she is biased and whether her impartiality
might reasonably be questioned. Although the second of those
inquiries-whether a judge's impartiality might reasonably be
questioned-is objective in theory, resolution of the question is
12. Although a detailed examination of the esoteric subject of how and why a litigant's
conduct could waive a supposedly unwaivable ground for recusal is beyond the scope of
this essay, readers interested in this topic might profitably review In re Kan. Pub.
Employees Retirement Sys., 85 F.3d 1353, 1360 (8th Cir. 1996).
13. Appellate courts tend to frown on recusal motions that are employed "as a fall-back
position in the event of adverse rulings on pending matters." In re IBM Corp., 45 F.3d 641,
643 (2d Cir. 1995); see also Kan. Pub. Employees Retirement Sys., 85 F.3d at 1360
(same); In re Cargill, Inc., 66 F.3d 1256, 1262-63 (1st Cir. 1995) ("In the real world,
recusal motions are sometimes driven more by litigation strategies than by ethical
concerns.").
RECUSAL ON APPEAL: AN APPELLATE ADVOCATE'S PERSPECTIVE
67
directed to the judicial officer whose bias is being alleged and
who perhaps is not best situated to determine, objectively,
whether her own impartiality might reasonably be questioned.
Whenever a party asks an appellate judge to recuse after the
judge has already concluded to her own satisfaction that she may
appropriately hear and decide the merits of an appeal, the party
risks being perceived by the judge as second-guessing her own
resolution of the issue. Where the ground for recusal is
ownership of stock or the involvement of the judge's close
family member as counsel, the judge is unlikely to take offense,
because a failure to recuse was likely the result of an oversight.
In contrast, where the ground for recusal is that the judge is
biased in fact, or that his impartiality might be reasonably
questioned, the party moving to recuse the judge invariably runs
the risk of offending the judge.
Sometimes, as happened when Pledge of Allegiance
challenger Michael A. Newdow filed a motion asking Justice
Scalia to recuse from participating at oral argument and voting
on the outcome in the Pledge case, a recusal request directed to
an appellate judge will cause the judge to refrain from
participating in a case in which the judge otherwise would have
participated.' 4 More often, however, the recusal petition will be
denied, as happened when Justice Scalia refused to recuse from
then-recent duck-hunting partner, Vicea case involving his
5
President Cheney.1
The recusal standards applicable to intermediate appellate
judges are the same as those applicable to trial court judges. And
appellate courts with regularity hold that trial judges have
abused their discretion in failing to recuse because, in the
appellate courts' view, the trial judges' impartiality reasonably
might be questioned. A key difference is that while an appeal as
of right ultimately can be taken from a trial judge's decision
refusing to recuse from a case, no appeal as of right usually
exists from an appellate judge's decision not to recuse from
hearing an appeal. At best, an intermediate appellate judge's
failure to recuse is subject to discretionary review in the highest
14.
Justice
15.
Scalia,
Elk Grove Unified School District v. Newdow, 542 U.S. 1, 28 (2004) (noting that
Scalia took no part in the consideration or decision of the case).
See Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 541 U.S. 913 (2004) (Memo. of
J.).
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
court of the state or, in the federal system, in the United States
Supreme Court. Not surprisingly, however, courts of last resort
rarely agree to review whether an intermediate appellate judge
abused her discretion in refusing to recuse from deciding an
appeal.
Because an appellate judge whose recusal is sought will
often be not only the first but also the final arbiter of whether
sufficient grounds exist for recusal, appellate lawyers ought to
advise their clients that requests for recusal should not be filed
unless the grounds for recusal are compelling. A less than
compelling, and thus unsuccessful, recusal request could cause
the appellate judge to harbor resentment toward the party which
claimed that the appellate judge was incapable of being fair.
After all, judges are only human. And therefore, a recusal
request that unsuccessfully challenges the perception of a
judge's impartiality can serve as a self-fulfilling prophesy.
V. ELECTED JUDGES-THE SPECIAL CONSIDERATIONS
A. Campaign Contributions
In states where appellate judges are elected to office, two
additional concerns are present. The first concern, which has
existed for quite some time, arises from the need to finance
campaigns for elective judicial office. Individuals who run for
judicial office often receive campaign contributions, and those
contributions can come from lawyers who handle appeals and
individuals and companies that may be parties to appeals. It
comes as something of a shock to realize that federal law
precludes a judge who directly owns even one share of stock in a
company from ruling on an appeal in which that company is a
party, but that most states would permit an elected appellate
judge to rule on the cases of lawyers and litigants who
contributed to his campaign. 16 An appellate judge who, once
elected to office, sought to repay supporters by means of
favorable rulings would assuredly be acting in an unethical
16. See e.g. Kevin McDermott, Court Says Karmeier Can Hear Donor's Case, St.
Louis Post-Dispatch B2 (Mar. 16, 2005).
RECUSAL ON APPEAL: AN APPELLATE ADVOCATE'S PERSPECTIVE
69
manner. But the overarching question is whether the appellate
be questioned, and that
judge's impartiality might reasonably
17
issue can be endlessly debated.
Although federal judges do not face popular election to
gain office, the issue of campaign contributions can arise with
respect to federal appellate judges, too. For instance, in June of
2000, a federal appellate judge whose spouse had served in
elective political office undertook to address publicly the
appearance of impartiality arising from campaign contributions
to her spouse. Third Circuit Judge Marjorie 0. Rendell, whose
husband had served as Mayor of Philadelphia and is now
Governor of Pennsylvania, adopted a noteworthy recusal policy
applicable to cases where the parties, their attorneys, or the law
firms involved had made financial contributions to her
husband's mayoral campaign. Judge Rendell announced that she
would recuse herself from all cases in which a party or its law
firm made contributions of at least $2,501 to the political
campaign of her husband, unless the parties agreed to waive the
disqualification. The notice also stated that she would disqualify
herself in cases in which a party or its law firm made a
contribution of less than $2,501 to her husband's campaign if
any party objected to her participation. According to the notice,
the Third Circuit Clerk's Office maintained a list of contributors
for inspection. 8
Ironically, the defeated Republican candidate for
Pennsylvania governor in 2002 was D. Michael Fisher, who then
served as Pennsylvania's Attorney General. In May 2003,
President Bush nominated Fisher to the Third Circuit, and in
17. The extent to which an appellate judge who gains election to that office may feel
beholden to supporters could also depend on whether the judge intends to serve more than
one term in office and, if so, what procedures govern re-election. In some states, currently
serving appellate judges must stand for re-election in contested races featuring challengers.
In others, such as Pennsylvania, an appellate judge who desires to serve another term must
receive a majority of votes cast in an uncontested retention election, where voters simply
choose whether the judge will serve another term. Only if a judge is not retained-an
extraordinarily rare occurrence-would a contested election be permitted to occur. Because
retention elections are uncontested, campaign efforts and related fundraising tend to be
quite minimal. Thus, it would seem that appellate judges elected in states that employ
uncontested retention elections may feel less beholden to campaign donors than judges
who face contested reelection campaigns that require significant fundraising efforts.
18. See Montrose Med Group ParticipatingSav. Plan v. Bulger, 243 F.3d 773, 776 n.*
(3d Cir. 2001) (setting out terms of recusal notice).
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
December 2003 the Senate confirmed him to that federal
appellate court. Judge Fisher has not, however, publicly
announced the recusal policy he employs in determining
whether to participate in cases that involve lawyers and parties
that donated to his failed campaign for governor just over a year
before he reached the Third Circuit.
B. Free-Speech Concerns
A second way in which different recusal concerns apply to
elected appellate judges arises from the Supreme Court's June
2002 ruling in Republican Party of Minnesota v. White. 19 The
Court held there that due to the dictates of the First Amendment,
candidates for elective judicial office cannot be prohibited from
announcing their views on disputed legal or political issues.20 A
candidate for judicial office who has announced views on a
disputed legal or political issue may cause her impartiality to be
reasonably questioned if the issue presents itself in an appeal.
But that would not always be so. For example, assume that a
candidate for judicial office expresses the view during his
campaign that the Supreme Court was wrong to recognize a
constitutional right to abortion in Roe v. Wade.2 ' If an abortion
case arose on appeal before that judge, he would be required to
apply relevant Supreme Court precedents no matter whether he
believed those cases to be correctly decided. Thus, a persuasive
argument can be made that, to the extent appellate judging does
not consist of the judge's imposing on the parties her personal
preferences in conflict with applicable law, a judge's earlier
announcement of views on disputed legal and political issues
should not give rise to a basis for recusal. Whether that
argument would be compelling in a particular case, however,
remains to be seen.
Even statements that do not explicitly announce the views
of a candidate for judicial office on disputed legal or political
issues can give rise to recusal concerns. For example, a
candidate for judicial office could simply accuse his opponent of
favoring a position that goes against the interests of the group
19. 536 U.S. 765 (2002).
20. Id.at 788.
21. 410 U.S. 113 (1973).
RECUSAL ON APPEAL: AN APPELLATE ADVOCATE'S PERSPECTIVE
71
before which the speaker is appearing. Say, for example, that a
candidate for the highest court in a state, while speaking at a
union-sponsored rally, accused his opponent of favoring big
business and being disposed to favor the controversial
demutualization of a large health-insurance company based in
the state. If the candidate speaking wins the election, and a
challenge to the insurer's demutualization thereafter reaches that
appellate court, would it be appropriate for the justice to
participate in hearing and deciding the case? The judicial
candidate's statement, taken at face value, did not express the
judge's position on the merits or the legality of the
demutualization. But the purpose of the statement was,
implicitly at least, to suggest that the judge would if elected not
favor the demutualization that his adversary supported. The
question has no easy answer, but appellate lawyers should bear
in mind that establishing an appellate judge's bias, or even
establishing the appearance of bias, through inferences drawn
from comparative statements made on the campaign trail is a
difficult task.
VI. STRATEGIC MOTIONS FOR RECUSAL
Because, in the federal judicial system, some grounds for
recusal operate inflexibly, it is possible for lawyers or their
clients to attempt purposefully to engineer the recusal of
appellate judges viewed as unfavorable to a client's position.
After an appellate judge has produced a sufficient track record
of decisions, he or she may develop a reputation based on
whether those decisions appear to be plaintiff-friendly or
defendant-friendly, prosecution-friendly or criminal-defendantfriendly. As a result, depending on the type of case that is being
appealed, a client or the client's lawyer may fervently hope that
certain appellate judges are not assigned to the panel that will
hear and decide the case. But the subject of strategic recusalby which I mean the recusal of one or more appellate judges
accomplished purposefully by a lawyer or litigant-is not often
discussed, no doubt because the goal seems unfair and perhaps
unethical. In a culture where lawyers and litigants are so very
focused on winning cases, however, you can be sure that
strategic recusals do occur.
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
How might a lawyer go about engineering the strategic
recusal of an appellate judge? One easy method is to have as
counsel in the case the law firm at which the appellate judge's
spouse or other close family member works. Or, if the appellate
judge is the spouse of a politician, a law firm can attempt to
engineer that judge's recusal by becoming a donor to the
politician's campaign. It might, for example, seem odd at first
glance for a law firm that represents corporate defendants to be
donating money to a plaintiff-friendly politician, until you
realize that the plaintiff-friendly politician's spouse is a plaintifffriendly appellate judge who now will be recused from
participating in cases involving that defendant-friendly law firm.
Some may view as audacious any attempt to engineer the
recusal of appellate judges for strategic reasons, but it might
strike others as quite a rational approach. Whatever one's view
of the practice, however, it does happen, both at the trial-court
and the appellate level. For example, in the United States
District Court for the Northern District of Alabama, attempts at
recusing a judge by hiring the law firm at which his close
relative worked arose in so many different cases that the court
adopted 22a standing order in the hope of alleviating the
problem.
In February 2005, the Second Circuit issued an interim
local rule that attempts to limit strategic recusals caused by
amicus curiae briefs. Perhaps recognizing that a true friend of
the court would not cause the disqualification of judges assigned
to decide a case, the new local rule provides:
The Court ordinarily will deny leave to file a brief for an
amicus curiae where, by reason of a relationship between a
judge who would hear the proceeding and the amicus or
counsel for the amicus, 23the filing of the brief would cause
the recusal of the judge.
Appellate judges are certainly able to determine for
22. In re BellSouth Corp., 334 F.3d 941, 945 (1 1th Cir. 2003) (quoting standing order).
Earlier, the Eleventh Circuit, in an appendix to its ruling in Robinson v. Boeing Co., 79
F.3d 1053, 1056-57 (11th Cir. 1996), listed numerous cases in which recusal had been
sought based on the appearance, after the case was initially assigned to a particular federal
district judge, of the law firm at which the judge's nephew worked.
23. Interim Loc. R. 29 (2d Cir.) (effective Feb. 7, 2005) (available at http://www.
ca2.uscourts.gov) (accessed Mar. 24, 2005; copy on file with Journal of Appellate Practice
and Process).
RECUSAL ON APPEAL: AN APPELLATE ADVOCATE'S PERSPECTIVE
73
themselves what value to assign to amicus briefs and whether to
prefer avoiding judicial disqualification over allowing the
participation of a friend of the court. Yet the Second Circuit's
interim rule appears to raise more questions than it answers.
First, many amicus briefs are filed on appeal without any
need for permission from the court.24 Why does the Second
Circuit's concern about strategic recusal apparently not extend
to amicus briefs filed with the consent of the parties to the
appeal, for which no court approval is required?
Second, it is not clear whether the rule will operate to deny
permission to file an amicus brief if the counsel for the amicus
would cause the recusal of a particular judge, but that judge has
not yet been, and may never happen to be, randomly assigned to
hear that very appeal. As noted earlier, many appeals are briefed
before they are assigned to a particular panel. In such a case, the
Second Circuit's interim rule could operate in three different
ways: (1) the appeal in which an amicus brief would cause one
judge's recusal could be assigned to a panel on which that judge
was not serving, thereby accomplishing the purpose of a
strategic recusal; (2) the appeal could be randomly assigned to
the next available panel, and the amicus brief would be refused
only if the judge who would be forced to disqualify happened to
be assigned to that panel; or (3) the Second Circuit could refuse
to accept for filing any amicus brief that would disqualify any of
that court's judges, without regard to whether any judge facing
disqualification would in fact have been assigned to decide the
case. It is impossible to tell from the text of the interim rule in
which of these ways it will operate.
Third, the interim rule is entirely silent about whether
Second Circuit judges remain free to apply different recusal
standards if the potential recusal is triggered by a party as
opposed to an amicus. In my experience, some federal appellate
judges will be more reluctant to recuse where the recusal is
triggered by an amicus than if the same grounds for recusal
involve a party. The Second Circuit's interim rule does not
expressly preclude such a double standard, but if one were
allowed, perhaps amicus-related recusals would not be enough
of a problem to require the interim rule in the first place.
24. Leave of court is not required to file an amicus brief where "the brief states that all
parties have consented to its filing." Fed. R. App. P. 29(a).
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
Fourth and finally, if the purpose of the interim rule is to
prevent strategic recusals, would it not make much more sense
to adopt a rule that addresses the problem with respect not only
to a subset of amici but with regard to all parties and all amici?
Perhaps the Second Circuit is proceeding incrementally, which
is certainly a valid rulemaking strategy. But if the concern of
strategic recusals is important enough to address with regard to
amici, then surely the problem is important enough to address
with regard to the actual parties to an appeal.
It seems likely that attempts to prompt strategic recusal will
typically be orchestrated subtly rather than in a brash and
flamboyant fashion. Because this tactic will in consequence be
difficult to spot in every case in which it is employed, appellate
courts act properly when they adopt rules that attempt to prevent
parties and their counsel from orchestrating a more favorable
panel through the use of strategic recusals. To be sure, a party
deserves to be represented on appeal by the lawyer of its
choosing, but the decision concerning which lawyer to choose is
not properly based on which appellate judge or judges the
lawyer's presence would recuse from the case.
The issue of strategic recusal on appeal, to the extent that
appellate courts are experiencing the problem, should be
addressed directly by rules that apply to all the lawyers in the
case, the parties, and any amici. The Second Circuit's interim
rule is an encouraging first step toward solving the problem of
strategic recusals on appeal, yet this vexing problem deserves a
more comprehensive solution.
VII. A FINAL WORD: FAILURE IS NOT AN OPTION
When considering whether to seek the recusal of an
appellate judge, my advice to clients is that failure cannot be an
option. In other words, a party should move to disqualify an
appellate judge only when disqualification is guaranteed to
result. This is because the only thing worse than an appellate
judge whose impartiality might reasonably be questioned is an
appellate court that might well resent a party's attempt, without
a convincing basis, to disqualify a judge from ruling on the
merits of a case.